JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The complainants booked a residential flat with the opposite party in a project namely ‘Harmony’ which the said opposite parties were to develop in Sector-50, Nirvana Country, Gurgaon.  A residential flat bearing No.1901, Tower No.4 (4BR) of the aforesaid project was allotted to the complainants for a total consideration of Rs.1,67,26,853/- plus other charges.  The parties then entered into an agreement dated 26.10.2007 incorporating their respective obligations.  As per Clause 4(a) of the said buyer’s agreement, the possession was to be delivered within thirty six months of its execution, meaning thereby that the possession ought to have been offered by 26.10.2010.  The grievance of the complainants is that despite they having paid a sum of Rs.1,99,28,171/- to the opposite parties, the possession has not been delivered to them.  The complainants have therefore filed this complainant, seeking possession of the flat allotted to them, along with compensation etc.

2.      The opposite parties did not file their written version within the prescribed period and therefore their right to file the said written version is closed vide order dated 07.7.2017.  I have heard the learned counsel for the parties and have considered the affidavits filed by the complainants by way of evidence.

3.      The learned counsel for the complainants states on instructions that though the prayer made in the complaint was for delivery of the possession of the flat along with compensation etc., considering the abnormal delay on the part of the opposite parties, in offering possession of the flats allotted, they have now decided to seek refund of the entire amount paid by them, along with compensation in the form of interest and accordingly, he is pressing for the said refund with compensation.

4.      The learned counsel for the complainants has also pointed out that this matter is already covered by several decisions of this Commission, including its recent decision dated 01.11.2017 in M/s. Gannon Dunkerley & Co. Vs. M/s. Unitech Ltd. & Anr. Consumer complaint No. 760 of 2016 and connected matters, including Consumer Complaint No.2 of 2014 Mohit Chopra Vs. M/s. Unitech Ltd., decided on 30.5.2017, CC No.1088 of 2015, Raja Balasubramanian Vs. M/s. Unitech Ltd., & Anr. Decided on 18.4.2017 and CC No. 368 of 2014 Shweta Kapoor & Anr. Vs. M/s. Unitech Ltd. & Anr. decided on 14.1.2016.

5.      The learned counsel for the complainants also states that the complainant is restricting his claim to the refund of the principal amount paid by him, along with compensation in the form of simple interest @ 10% per annum, in terms of Clause 4(e) of the Buyer’s Agreement.

6.      The learned counsel for the opposite party No.2 submits that as per the agreement between the opposite parties, the liability of the opposite party No.2 is restricted to 40% of the amount received form the complainant and rest of the amount should be awarded only against opposite party No.1.  However, the Buyers agreement does not contain any such stipulation and admittedly both the opposite parties are signatory to the said agreement.  Therefore, the whole of the liability of the opposite parties is jointly as well as several.

7.      The learned counsel for the opposite party No.2 further submits that pursuant to the liberty granted by the Hon’ble Supreme Court, the complainants have also registered their grievance on the Portal created in terms of the directions of the Hon’ble Apex Court and therefore, the complainants should be directed to have their redressal only from the Hon’ble Supreme Court.  I however find no merit in the submission.  Registering grievance on the said portal does not come in the way of the complainant pursuing a remedy in the consumer Protection Act.

7.      The complaint is therefore disposed of with the following directions:

(i)      The opposite parties shall refund the entire principal amount of Rs.1,99,28,171/- to the complainants, alongwith compensation in the form of simple interest @ 10% per annum from the date on which the payment is made till the date on which the entire amount payable to the complainants along with compensation in terms of this order is actually paid.

(ii)      The opposite parties shall pay Rs.25,000/- as the cost of litigation to the complainants.

(iii)     The payment in terms of this order shall be made within three months.